Make Sure Religion at Work Stays on Right Side of Line

Whether an expression of religious belief, or non-belief, comes from an employee, supervisor or company owner, U.S. employers must ensure that such expressions in the workplace do not cross the line into harassment or discrimination.

“It’s often a very fine line,” according to Denise Cline, an employment lawyer in the Raleigh, N.C., firm of Smith Moore Leatherwood. “Regularly conducting a morning prayer might not be enough to warrant a claim of religious harassment from an employee. But regularly e-mailing or lecturing an employee about their faith or lack of it—especially by a manager—can land a company in hot water.”

The Washington Times newspaper made headlines in November 2009 when a former opinion page editor alleged that he was forced out after joking about the Unification Church, which has helped fund the paper. Richard Miniter has since filed a lawsuit and a religious discrimination complaint with the U.S. Equal Employment Opportunity Commission (EEOC).

And, the director of the Ohio Workers’ Compensation Council recently became embroiled in controversy when she fired her three-person staff, including two attorneys. The workers alleged that Virginia McInerney led prayer sessions, doled out copies of “God at Work” CDs, and began judging them not on their professional performance but on “the quality of their faith.”

Over the past two decades, spirituality and business have become increasingly linked, according to Lake Lambert III, professor of religion and board of regents chair in ethics at Wartburg College in Waverly, Iowa, and author of Spirituality, Inc. (NYU Press, 2009).

“Americans want to be whole people at work, and that includes being openly religious,” Lambert said. “The workplace spirituality movement is a response to that deep desire, and nothing will stop it.”

Lambert noted the following examples:

• Chick-fil-A is closed on Sundays to honor the Sabbath and dedicates each new store “to God’s glory.”
• Chaplains walk the halls of corporate headquarters and processing floors at Tyson Foods.
• Ford and Xerox sponsor spiritual retreats to spark creativity.
• Small businesses include Bible verses and Christian symbols on advertising.

Now more than ever, religious pluralism can raise issues for employees and “has the potential to create tensions when employees and employers do not share the same beliefs,” Lambert told SHRM Online.

A Look at the Law

In the past decade, the number of religious discrimination charges filed with the EEOC has risen substantially. In fiscal year 2009, the EEOC received a record 3,386 religious discrimination charges, an 87 percent increase over the number of such charges filed in 1999.

“Given the past trends, it looks like workplace religious discrimination complaints will continue to rise,” Lambert observed. However, he noted that a U.S. business owner can run a company “however she sees fit—even as an openly religious workplace.”

Title VII of the Civil Rights Act of 1964 prohibits covered employers from discriminating against someone because of their religion when making decisions about hiring, firing, and other terms and conditions of employment. Moreover, employers cannot force an employee to participate in a religious activity—or prevent an employee from participating—as a condition of employment.

The law protects those who belong to organized religions, such as Buddhism, Christianity, Hinduism, Islam and Judaism, as well as people who have lesser-known but sincerely held religious, ethical or moral beliefs.

Harassment, such as offensive remarks about a person’s religious beliefs or practices, or lack thereof, if “frequent or so severe that it creates a hostile or offensive work environment,” is illegal, according to the EEOC.

And, because companies can be liable for religious harassment by supervisors, co-workers, clients and customers, it pays to implement an anti-harassment policy that includes procedures for reporting, investigating and correcting harassing conduct.

Exceptions Are Few

Jeanne Goldberg, a senior attorney advisor in the EEOC’s Office of Legal Counsel, said there are no statistics on religious discrimination relating specifically to private employers that proclaim specific religious beliefs in the workplace and/or fail to make accommodations for non-believers.

“There are a certain number of examples every year in the case law of this type of situation where a private employer has owners or managers who themselves are religious and seek to express that in the workplace,” Goldberg said. “They have a right to do so, but they need to be careful not to violate Title VII by engaging in activities that are harassment, or by denying accommodations to other employees who don’t adhere to their beliefs.”

There is a narrow exception that allows “religious organizations” to prefer to hire only co-religionists, but Goldberg cautioned that such exceptions typically do not extend to “private for-profit businesses engaged in providing secular services or producing secular products.”

And, while private employers are free to discuss religion in the workplace, in some cases “courts have drawn the line and said that’s potential harassment if the employee says it’s unwelcome,” Goldberg noted, particularly if it is “severe or pervasive.”

For example, an employer might hand out religious literature to an employee in an attempt to convert the employee to a particular set of beliefs. “Once someone objects, if the employer continues to proselytize the employee, the courts have found that might constitute religious harassment,” Goldberg explained.

She added that Title VII issues can arise if a business owner requires an employee to sign a statement saying they agree with the company’s religious missions and values or if a company fails to make accommodations to excuse non-believers from attending workplace Bible study, religious services or other observances. Issues can also arise if the company retaliates against an employee for not participating in such religion-related activities.

Case Examples

A number of cases demonstrate what not to do when it comes to religion in the workplace.

In 1988, the EEOC prevailed in litigation against Townley Engineering & Manufacturing Co. of Eloy, Ariz., alleging that the company failed to accommodate an atheist employee’s request, on religious grounds, to be exempt from attending mandatory company-run religious services.

In 2002, the EEOC prevailed in a suit against Preferred Management Corp., a home health care services provider in Indiana whose CEO adhered to a literal interpretation of the Bible. The company distributed religious materials in employee mailboxes, and employees were asked in public meetings to share their religious experiences. The court noted that workers with non-conforming religious views were chastised as being “sinful, weak, not walking in God’s path, broken or wounded, in need of spiritual guidance or development.”

In 2005, the EEOC settled a suit against Norwegian American Hospital in Chicago alleging that the hospital disciplined a Muslim nurse midwife for declining to participate in workplace Christmas celebrations in 2000 and 2001, and thereafter disciplined her for errors made by other employees, repeatedly scheduled her to work on her holy day, and fired her after she complained about religious discrimination and retaliation.

And in 2007, the EEOC settled a suit with Native Angels Homecare Agency in North Carolina after a registered nurse was terminated because she refused to attend a work “prayer circle.”

Tips for HR

When it comes to permitting prayer, proselytizing and other forms of religious expression in the workplace, the EEOC recommends that employers:

• Train managers to gauge the disruption posed by religious expression in the workplace, “rather than merely speculating that disruption may result.”
• Train managers to identify alternative accommodations that might be offered to avoid disruption (for example, designating an unused or private location in the workplace for a prayer session or Bible study if it’s disrupting other workers).
• Consider incorporating a discussion of religious expression—and the need for all employees to be sensitive to the beliefs or non-beliefs of others—into anti-harassment training for managers and employees.

Nigel Telman, a partner who heads Proskauer Rose’s Labor & Employment Law group in Chicago, said religious discrimination and harassment is a particularly important issue for HR and organizations because the EEOC is getting “very aggressive in its investigations.

“I certainly expect to see employees filing more charges of discrimination, including possibly those involving ‘reverse’ religious discrimination, in the near future,” Telman said.

He added that the economic downturn has added a twist. In the past, where an employee might just find another job and quit rather than continue to face what he or she believes to be discrimination, they’re now more likely to dig in, stay on the job and “fight it” by filing a charge.

Telman said HR should examine harassment prevention policies and make sure mid-level managers in particular understand the policies because “a completely neutral organization may be free of religious discrimination or harassment” but a rogue manager with deeply held beliefs can get the company in trouble.

Pamela Babcock is a freelance writer based in the New York City area.

Related Articles

• Training Can Help Prevent Religion-Related Gaffes, SHRM Online Diversity Discipline, January 2010
• ‘Head Faking’ Can Lead to More Religiously Tolerant Workplace, SHRM Online Legal Issues, January 2010
• Requests for Sabbath Time Off Require Careful Response, SHRM Online Employee Relations Discipline, June 2009
• EEOC: Christian Employees Eligible for Religious Accommodation, SHRM Online Employee Relations Discipline, June 2009
• Consider Religious Beliefs When Scheduling Events, SHRM Online Diversity Discipline, May 2009
• HR Seeks Balance in Handling Religion in the Workplace, HR News, Oct. 21, 2008

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